Dianne M. Kroger v. Michael J. Astrue

The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER REVERSING AND REMANDING THE DECISION OF COMMISSIONER

Plaintiff, Dianne M. Kroger, moves for reversal of the Commissioner of Social Security's (Commissioner) decision denying her application for supplemental security income (SSI) under Title XVI of the Social Security Act for the time period between July 26, 2007, and September 17, 2009. The Commissioner opposes this motion. The court reverses and remands.

PROCEDURAL HISTORY

On July 26, 2007, Kroger applied for SSI and alleged an onset date of February 28, 2007. AR 111.*fn1 On October 15, 2007, the Social Security Administration denied Kroger's application. AR 68. On January 15, 2008, Kroger requested reconsideration, which was denied on April 17, 2008. AR 73. Kroger then requested a hearing before an Administrative Law Judge (ALJ). AR 76. The ALJ held a hearing on September 24, 2009, after which he determined that Kroger was not disabled, and, thus, she was not entitled to SSI benefits. AR 3-13. On November 16, 2009, Kroger requested that the Appeals Council review the decision. AR 2.

On May 2, 2010, Kroger's counsel submitted additional evidence and a "Compassionate Allowances Inquiry" to the Appeals Council addressing a new medical condition, namely lung cancer (adenocarcinoma). AR 210-12. On July 16, 2010, the Appeals Council granted review and proposed finding Kroger disabled beginning on September 18, 2009, due to her lung cancer. AR 105-108.*fn2

After Kroger submitted additional documents, the Appeals Council adopted the ALJ's decision for the time period of July 26, 2007, through September 17, 2009, but found that Kroger was disabled as of September 18, 2009. AR 660. Kroger appeals the Commissioner's final decision regarding the time period of July 26, 2007, through September 17, 2009. Docket 1 at ¶ 2.

FACTS

Kroger was 48 years old at the time of her application and turned 50 years old on May 20, 2009. AR 111. After Kroger suffered a head injury while waterskiing when she was 16, she began having seizures. AR 334. Kroger continues to take Dilantin for her seizures, but she has not had a seizure for over 20 years. AR 32.

After graduating from high school, Kroger worked in a machinery shop in Flandreau, South Dakota. AR 368. The machinery shop fired her because she had a seizure on her way to work. AR 368. Kroger then worked for Alibi, a bar in Dell Rapids, for an unknown period of time. AR 368. After Alibi, she worked in a bakery and, after that, cleaned houses for a couple of years. AR 368. She lived with her parents until her late 20s or early 30s, and then moved in with her boyfriend, Ross Goetz, with whom she has lived for over 20 years. AR 368. Kroger has no children, but Goetz's 21-year-old son lives in the home. AR 368. Kroger has not worked outside the home since she began living with Goetz. AR 368. Kroger's medical history is set out by each medical condition.

I. Hodgkin's Lymphoma

Kroger was diagnosed with Hodgkin's lymphoma*fn3 when she was 36 years

old. AR 146. While Kroger has suffered from an occasional flare-up from her Hodgkin's,*fn4 she did not allege that she was disabled due to her Hodgkin's.

On June 10, 2008, a lab report showed that Kroger had a 6-mm by 6-mm noncalcified nodule in the right upper lobe of her lung. AR 411. A biopsy of the nodule later proved to be cancerous, and Kroger had a lobectomy of the right lung on October 19, 2009. AR 529. Because Kroger was not diagnosed with lung cancer during the time period at issue here, the remainder of the facts about Kroger's lung cancer are omitted.

II. Feet

In January of 2005, Kroger sought treatment from Dr. Nicola Pike, D.P.M., for severe pain and discomfort in her right toe. AR 428. Dr. Pike assessed that Kroger suffered from a chronic ingrown toenail and infection of the right great toe. AR 429. Kroger underwent some physical therapy. AR 426. During a March 17, 2006, appointment with Dr. Pike, Kroger reported that she was able to perform all of her normal activities and wear her normal shoes. AR 425.

Kroger did not complain about toe pain again until April of 2008. Dr. Pike removed Kroger's great right toenail and the toenail's root on April 4, 2008. AR 405. Following this procedure, Kroger experienced "purulent discharge," and she was prescribed antibiotics and foot soaks. AR 405.

Kroger also saw Dr. Pike for pain in her left foot in April of 2008, which Dr. Pike diagnosed as metatarsalgia (pain in the forefoot) and left joint bursitis.*fn5 AR 492-93. Dr. Pike referred her to physical therapy, AR 492, which Kroger attended in July and August of 2008. AR 436, 438, 461. On September 19, 2008, Kroger told Dr. Pike that she did not often experience foot pain and that she could perform her normal activities. AR 454.

During the hearing, Kroger testified that she was "still having problems with" her right toe and thought that she would have to see the doctor again because she did not think it was healing correctly. AR 52.

III. Mental Functioning and Rehabilitation Services

A. Mental Functioning

On December 14, 2007, Kroger applied for vocational rehabilitation (VR) services through the South Dakota Department of Human Services, Division of Rehabilitation Services (Rehabilitation Services). AR 200. Kroger's VR counselor, Vicki Nelson, told Kroger that she needed to have achievement testing completed before Rehabilitation Services would be able to assist her. AR 193. Dr. Elwin Unruh, a psychologist, performed the testing on January 28, 2008. AR 88, 371.

Dr. Unruh determined that Kroger had a verbal IQ score of 72, a performance IQ score of 74, and a full scale IQ score of 70. AR 371. Dr. Unruh also determined Kroger's grade equivalent scores for different categories, which represents Kroger's grade level functioning compared to the national norm group. AR 372. Kroger's ability to read was a grade equivalent of 8.8, her spelling ability was a grade equivalent of 7.3, and her math calculation, or "pencil and paper" math, was a grade equivalent of 4.4. AR 372. Dr. Unruh observed that Kroger experienced difficulties with affect or motivation because she easily became frustrated, agitated, or impulsive during the testing session. AR 377.

Dr. Unruh diagnosed Kroger as having premorbid intellectual functioning in the low-average levels, generalized anxiety disorder, attention deficit/hyperactivity disorder, and borderline intellectual functioning. AR 370. He observed that Kroger "presents as an individual who is quite shy and dependent. She did not give the impression of having a great deal of insight as to choices she might make to improve her current status[.]" AR 369.

On April 15, 2008, Dr. Richard Gunn, Ph.D., a state agency psychologist, reviewed Kroger's examination and noted that while Kroger suffers from a generalized persistent anxiety disorder, her impairment was not severe. AR 390. He opined that Kroger's functional limits had a mild degree of limitation on her activities of daily living and in maintaining concentration, persistence, or pace, no limitation in maintaining social functioning, and no episodes of decompensation. AR 400. Dr. Gunn summarized that Kroger's intellectual level is in the borderline intellectual functioning range, but her functioning is such that she can care for herself and others and "could do basic routine work." AR 402.

During the hearing, Kroger testified that she "sometimes get[s] kind of scared," nervous, and "[k]ind of shaky" around people and that issue has persisted for a while. AR 35, 46. She reads the newspaper, but if she wants to remember something, she has to write it down. AR 46. Goetz testified that Kroger sometimes needs to reread directions or a recipe several times before she can understand it. AR 57-58.

B. Rehabilitation Services' Findings

Rehabilitation Services found that Kroger was eligible for services under "Priority Category II-- Significantly Disabled" with primary disabilities of "Manipulations/Dexterity Orthopedic/Neurological Impairments," due to a "multi-level degenerative disk disease with disk herniations throughout the spine to the lumbar spine" and "bilateral carpal tunnel syndrome." AR 197. Rehabilitation Services concluded that Kroger "[i]s restricted to sedentary or light duty activities and occupations classified by the DOL [Department of Labor]. She needs to avoid frequent repetitive use of her arms and avoid heavy lifting." AR 197.

On January 16, 2008, Nelson reviewed Kroger's medical records and noted that her limitations include avoiding heavy lifting and frequent use of her arms. AR 189. On February 25, 2008, Nelson and Kroger met to discuss Kroger's VR plans. AR 187. Kroger stated that her back pain prevented her from participating in the various situational assessments offered by Nelson. AR 187. Nelson stated that she would keep Kroger's file open for a period of time to determine whether Kroger could participate in assessments or if she would receive SSI benefits. AR 187.

On April 7, 2008, Kroger told Nelson that she had her toe nail and root removed, and the doctor estimated that she would need six weeks to recover. AR 186. On May 30, 2008, Kroger informed Nelson that her toe was infected, and she would be unable to do anything until it was healed. AR 184. On June 16, 2008, Kroger again informed Nelson that she was unable to try to work due to continuing issues with her toe. AR 183. On June 26, 2008, Kroger informed Nelson that her toe was still sore and her doctor had found a lump in her body that needed to be checked out. AR 182.

On August 22, 2008, Nelson notified Kroger that she was in the process of closing Kroger's file because of her continued medical issues. AR 180. Kroger did not contest the closing of her VR file, and the file was closed on September 5, 2008. AR 178.

IV. Arthritis/Carpal Tunnel Syndrome

Kroger repeatedly has been diagnosed as having arthritis.*fn6
AR 306, 409,
472, 538. Kroger also suffers from carpal tunnel syndrome.*fn7
During a January 24, 2007, appointment with Dr. Wilson Asfora
at Sanford Clinic Neurosurgery and Spine, Dr. Asfora noted that Kroger
suffered from numbness and tingling in both hands. AR 262. He
suspected that Kroger had bilateral carpal tunnel syndrome and
scheduled her for further testing. AR 264.

Physical therapist John Decker, MPT, at the Dell Rapids Community Hospital completed Kroger's nerve conduction studies on February 23, 2007, which revealed that both ulnar nerves at the elbow fell slightly out of accepted parameters. AR 294-95. Decker also found that Kroger's right median nerve fell out of accepted parameters. AR 297. Rehabilitation Services found that one of Kroger's primary disabilities was orthopedic dexterity and manipulation and stated that she had bilateral carpal tunnel syndrome. AR 197.

In her August 8, 2007, "Function Report," Kroger circled "using hands" as an area affected by her condition, and she noted that she cannot pick things up or hold them for a long time. AR 144. In her disability appeal report, Kroger stated that it hurt to bend her fingers, her hands were shaky, she struggled to button shirts, hook bras, and she sometimes experienced trouble cutting her finger and toe nails. AR 160, 164. In her next disability report, Kroger noted that her hands were more shaky, she struggled to open jars and tie her shoes, and her arthritis caused her pain. AR 171, 174. Goetz noted that in addition to the activities listed above, Kroger also needs help tying her shoes. AR 174.

During the hearing, Kroger testified that sometimes it is difficult for her to open a jar. AR 9. She also testified that sometimes doing buttons and zippers is easy for her and sometimes not, and that the difficulty has existed since at least 2007. AR 41. She thought the difficulty could be due to arthritis, but she did not know. AR 42.

V. Back Issues

On October 20, 2006, Kroger saw a doctor about right side low back pain that had been bothering her for a couple of days. AR 258. Kroger reported that she was on her knees cleaning the inside of a cupboard when she felt a popping sensation in her back and experienced pain. AR 300. Kroger underwent chiropractic treatments for her back from October 20, 2006, through November 3, 2006. AR 257-61.

On October 31, 2006, Kroger saw Dr. Matt Herber, M.D., at Dell Rapids Medical for her low back pain. AR 268. On November 11, 2006, Dr. Herber prescribed Darvocet-N 100*fn8 to Kroger for her back pain. AR 267. Dr. Herber referred Kroger to physical therapist Decker, who saw Kroger for the first time on November 14, 2006. AR 300. Decker treated Kroger with muscle stretching, low back exercises, and ultrasound to reduce the pain. AR 300. When Decker saw Kroger the next day, Kroger was unable to tolerate any therapy except ultrasound therapy for ten minutes. AR 300.

On November 17, 2006, Kroger had an MRI taken pursuant to Dr. Herber's orders. AR 265. The MRI showed "a small central disc protrusion" at L5-S1, "which does not appear to have mass-effect on the thecal sac of S1 nerve roots." AR 265. Kroger had "T2 hyperintensity in the dorsal annulus consistent with degenerative annual tear," and a "broad-based right foraminal to lateral disc protrusion" at L4-L5, which contacted the extraforminal right L4 nerve root. AR 265. The MRI at L3-4 was unremarkable. AR 265. At L2-3, the MRI showed a "broad-based small central disc protrusion which mildly indents the ventral thecal sac." AR 265. The impression was that Kroger suffered from "multilevel degenerative disc disease and disc herniations[.]" AR 165.

Kroger received an epdiural steroid injection from Dr. Herber on November 21, 2006, AR 267, but it did not relieve her pain. AR 501. On December 15, 2006, Dr. Herber referred Kroger to surgeon Dr. Wilson Asfora, M.D. AR 267.

During a January 24, 2007, appointment, Dr. Asfora noted that Kroger's back pain fluctuates, but she always experiences some level of persistent pain in her lower back and lower extremities. AR 262. Kroger also reported issues with "some incontinence." AR 262. Dr. Asfora noted that Kroger's gait was normal, but she had "tenderness to pressure in the midline in the midlumbar region." AR 263. Dr. Asfora opined that Kroger would not be a surgical candidate because of multilevel disc involvement and a history of smoking. AR 281.

On March 29, 2007, Dr. Lori Krome, who appears to be Kroger's family physician, referred Kroger to Dr. Jonathan Stone, M.D., at Avera Rehabilitation Associates. AR 281. Dr. Stone noted that Kroger's chiropractic treatments and epidural injections did not help with the pain. AR 281. Dr. Stone opined that Kroger's back pain was "mostly discogenic and probably from the annular tear that was noted on [the] MRI." AR 283. He prescribed physical therapy exercises to strengthen her core muscles. AR 283.

Physical therapist Decker saw Kroger on April 2, 2007. AR 290. Kroger did some stretches and one set of weight lifting exercises. AR 290. Decker ordered a plan of care for two to three days a week for four weeks. AR 290. Kroger attempted to do weight lifting exercises and walk on a treadmill, but she did not tolerate active physical therapy well and, thus, mostly received ultrasound, massage, and moist heat therapies. AR 290-91.

Dr. Stone saw Kroger on April 23, 2007, to assess her treatment plan. AR 279. He noted that she had moderate to severe limitations in her lumbar range of motion, and that extensions and rotations increased her pain. AR 279. He noted that Kroger was "not tolerating much of the active therapy and only some passive modalities" in her physical therapy program. AR 280. He prescribed a Medrol ...

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